The Supreme Court issued a controversial, 5-4, decision today on whether local governments can seize private property under eminent domain and hand the property over to a private entity for economic development.
The Supreme Court today effectively expanded the right of local governments to seize private property under eminent domain, ruling that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined "public use."
In a 5-4 decision [in the Kelo v. New London, Conn. case], the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.
The immediate impact of this decision is disquieting. Why should governments have the power to seize people's homes? But governments do have that power, written right into the Fifth Amendment: "nor shall private property be taken for public use, without just compensation." So as long as just compensation is provided and that the takings is for public use, governments can apparently seize whatever they want—at least under the Constitution. And they've been doing so since the days of the founding fathers.
The real issue in this case was who gets to determine what is a "public use": elected legislative bodies? or the courts?
The decision by the majority of the Supreme Court is, as I see it, a fundamentally non-activist decision. In determining what a "public use" is, the Supreme Court deferred to the judgement of elected officials. Legislative bodies more closely represent the people, and thus should be in better tune to what constitutes an appropriate public use.
Writing for the majority, Justice John Paul Stevens said the case turned on the question of whether New London's development plan served a "public purpose." He added, "Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field."
The four justices in the minority supported an activist decision, that would have the unelected courts imposing their view of "public use." Who were those four? The three conservative heroes—Scalia, Rehnquist, and Thomas—together with usual swing justice Sandra Day O'Connor. (Today the swing justice was Anthony Kennedy, who supported with the four more liberal members of the Court in issuing their non-activist decision.)
I have a hard time seeing how this case is much different, on the surface, from using eminent domain for urban renewal. And so today's decision is just a reaffirmation of the fifty-year old decision that permitted that. If anything, today's decision made eminent domain a more equitable process, since now government can seize the land of more than just poor people. (If local governments abuse their broad powers of eminent domain, there are plenty of ways this can be dealt with, as discussed in section III of this amicus brief from the American Planning Association.)
The Kelo v. New London opinions illustrate how conservative jurists are the true judicial activists these days. I certainly do not want Antonin Scalia and Clarence Thomas and their ilk deciding what is an appropriate public use.
UPDATE (6:11 P.M.): Nathan Newman explains further why this was a very reasonable decision.
If America wasn't a totalitarian dystopia yesterday, then it isn't going to be one tomorrow in light of this ruling. Nothing has changed. Perhaps you think it's bad that nothing has changed, but it's not really the moment to start pulling your hair out. It probably is the moment to start paying closer attention to City Council elections which many people, myself included, tend not to scrutinize much. Those people have real power and it's worth paying attention.